Cooper v. Vigor Marine, LLC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ASHLEY COOPER,
Plaintiff,
vs.
VIGOR MARINE, LLC; VIGOR
INDUSTRIAL, LLC; BRANDSAFWAY
INDUSTRIES, LLC; BRANDSAFWAY,
LLC; BRANDSAFWAY SERVICES, LLC;
BRANDSAFWAY SOLUTIONS, LLC;
INTERNATIONAL MARINE AND
INDUSTRIAL APPLICATORS, LLC;
IMIA, LLC; IMIA HOLDINGS, INC.;
DOUG EISS, in personam; DOE
INDIVIDUALS 1-10; DOE
CORPORATIONS 1-10; DOE
PARTNERSHIPS 1-10; DOE
ENTITIES, 1-10,
Defendants.
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Civ. No. 22-00275 HG-RT
ORDER GRANTING DEFENDANTS INTERNATIONAL MARINE AND INDUSTRIAL
APPLICATORS, LLC; IMIA, LLC; IMIA HOLDINGS, INC.; AND, DOUG
EISS’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT FOR
FAILURE TO STATE A CLAIM (ECF No. 67) WITH LEAVE TO AMEND
Plaintiff Ashley Cooper filed a First Amended Complaint
alleging that on August 21, 2021, she was employed to work on the
U.S.S. William P. Lawrence, a vessel. The vessel was alleged to
be located in a graving dock at the Pearl Harbor Naval Shipyard
in Hawaii.
Plaintiff claims that she was employed “to perform
industrial painting, blasting, cleaning, and other related work
in a containment.” Plaintiff asserts that she was injured when
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her right arm was sucked into an industrial vacuum when she was
working at the site.
Plaintiff filed her lawsuit seeking damages for her injuries
against various sets of entities:
(1) Defendants Vigor Marine, LLC and Vigor Industrial, LLC,
which Plaintiff claims were the general contractors on
the job site where she was allegedly injured;
(2) Defendants Brandsafway Industries, LLC; Brandsafway,
LLC; Brandsafway Services, LLC; and Brandsafway
Solutions, LLC, which Plaintiff claims were the
subcontractors on the job site where she was allegedly
injured;
(3) Defendants International Marine and Industrial
Applicators, LLC; IMIA, LLC; IMIA Holdings, Inc. (“the
IMIA Defendants”) which Plaintiff claims were her
“employer as a seaman”; and,
(4) Defendant Doug Eiss, in personam, who Plaintiff claims
was her supervisor and was also “employed by IMIA.”
Plaintiff’s First Amended Complaint asserts, in part:
(1) a Jones Act Negligence claim against “IMIA”;
(2) a Jones Act claim for Maintenance, Cure, and Unearned
Wages against “IMIA”;
(3) Willful and Wanton Misconduct against Eiss; and,
(4) Punitive Damages against all Defendants.
The causes of actions brought against the IMIA Defendants
are premised on Plaintiff demonstrating that she was a “seaman”
injured in the course of employment pursuant to the Jones Act.
The IMIA Defendants and Doug Eiss move to dismiss the claims
against them in the First Amended Complaint, arguing that
Plaintiff has failed to state a plausible claim against them.
They argue that Plaintiff was not a “seaman” for purposes of the
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Jones Act. Plaintiff has merely provided a conclusory allegation
that she was a seaman with no factual support. They argue that
Plaintiff was a longshoreman, not a seaman, and that the
Longshore and Harbor Workers’ Compensation Act applies to her
case instead of the Jones Act.
Defendants International Martine and Industrial Applicators,
LLC; IMIA, LLC; IMIA Holdings, Inc.; and Doug Eiss’s Motion to
Dismiss (ECF No. 67) is GRANTED.
Plaintiff is given LEAVE TO AMEND.
PROCEDURAL HISTORY
On May 6, 2022, Plaintiff filed a Complaint in the Circuit
Court of the First Circuit, State of Hawaii. (ECF No. 1-3).
On June 17, 2022, Defendants removed the Complaint to the
United States District Court for the District of Hawaii. (ECF
No. 1).
On February 24, 2023, Plaintiff filed the First Amended
Complaint. (ECF No. 36).
On May 22, 2023, Defendants International Martine and
Industrial Applicators, LLC; IMIA, LLC; IMIA Holdings, Inc.; and
Doug Eiss filed a MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED
COMPLAINT FOR FAILURE TO STATE A CLAIM. (ECF No. 67).
On June 1, 2023, the Parties filed a JOINT MOTION TO EXTEND
BRIEFING SCHEDULE REGARDING MOTION TO DISMISS. (ECF No. 69).
On June 2, 2023, the Court granted the Parties’ Motion to
Extend the Briefing Schedule. (ECF No. 70).
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On June 9, 2023, Defendants Brandsafway Industries, LLC;
Brandsafway, LLC; Brandsafway Services, LLC; and Brandsafway
Solutions, LLC filed a STATEMENT OF NO POSITION as to the Motion
to Dismiss. (ECF No. 71).
On June 9, 2023, Plaintiff filed an Opposition to the IMIA
Defendants and Doug Eiss’ Motion to Dismiss. (ECF No. 72).
On June 23, 2023, the IMIA Defendants and Doug Eiss filed
their Reply. (ECF No. 74).
On July 18, 2023, the Court held a hearing on the Motion to
Dismiss. (ECF No. 76).
BACKGROUND
Plaintiff Ashley Cooper asserts that on August 21, 2021, she
was “employed by IMIA.” (First Amended Complaint at ¶ 10, ECF
No. 36). She alleges that she was employed “to work aboard the
USS William P. Lawrence (DDG-110) (the ‘Vessel’) in a graving
dock at Pearl Harbor Naval Shipyard to perform industrial
painting, blasting, cleaning, and other related work in a
containment.” (Id.)
Plaintiff states that on August 21, 2021, she was aboard the
Vessel when she observed contaminants coming out of a hole in the
containment. (Id. at ¶¶ 11-13). Plaintiff claims that she tried
to vacuum up the contaminants when “her right arm was sucked into
one of the hoses of the Quiet Cube industrial vacuum, which
lacked a kill switch and guards over the opening of the hose,
causing ongoing and severe injuries.” (Id. at ¶ 13).
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Plaintiff claims that on August 21, 2021, she “was in the
employ of IMIA as a seaman.” (Id. at ¶ 44). The First Amended
Complaint does not identify any specific entity as “IMIA.”
Plaintiff claims that “IMIA” is responsible for her injuries
because it had “actual of constructive knowledge” that the
industrial vacuum lacked a kill switch and safety guards, that
“IMIA” failed to exercise reasonable care and that “IMIA” was
negligent. (Id. at ¶¶ 45-51).
Plaintiff asserts that it was “the duty of IMIA to apprise
Plaintiff of her right to seamen’s benefits” and to provide her
with maintenance, cure, and unearned wages under the Jones Act.
(Id. at ¶ 58-61).
Plaintiff asserts that Defendant Doug Eiss “was employed by
IMIA in a supervisory capacity responsible for jobsite safety for
IMIA’s work on the Vessel.” (Id. at ¶ 63). Plaintiff claims
that Defendant Eiss had knowledge about the dangerousness of the
industrial vacuum and the job site and acted “negligently,
wilfully, and wantonly in exposing Plaintiff to the Quiet Cube
industrial vacuum.” (Id. at ¶ 70). Plaintiff seeks damages
against Defendant Eiss as a result. (Id. at ¶¶ 73-75).
STANDARD OF REVIEW
The Court must dismiss a complaint as a matter of law
pursuant to Federal Rule of Civil Procedure 12(b)(6) where it
fails “to state a claim upon which relief can be granted.” When
considering a Rule 12(b)(6) motion to dismiss, the Court must
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presume all allegations of material fact to be true and draw all
reasonable inferences in favor of the non-moving party. Pareto
v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998). Conclusory
allegations of law and unwarranted inferences are insufficient to
defeat a motion to dismiss. Id.
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged. Id. at 663 (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007)).
The complaint “must contain sufficient allegations of
underlying facts to give fair notice and to enable the opposing
party to defend itself effectively” and “must plausibly suggest
an entitlement to relief, such that it is not unfair to require
the opposing party to be subjected to the expense of discovery
and continued litigation.” AE ex rel. Hernandez v. Cnty of
Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (citation and internal
quotation marks omitted).
ANALYSIS
The Jones Act permits a “seaman injured in the course of
employment” to recover damages against her employer. 46 U.S.C. §
30104.
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Plaintiff must establish two threshold requirements in order
to bring a negligence claim against her employer pursuant to the
Jones Act:
(1) she must establish that she was employed by the
defendant at the time of the injury; and,
(2) she must establish that she was a “seaman” within the
meaning of the Jones Act.
Holm v. Meyers, 609 F.Supp.3d 1173, 1178 (W.D. Wash. 2022)
(citing Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U.S.
811, 817 (2001)).
I. Plaintiff Has Not Alleged Which Entity Was Her Employer At
The Time Of Her Alleged Injury For Purposes Of Her Jones Act
Negligence Claim
In order to state a claim for negligence pursuant to the
Jones Act, a plaintiff must establish that she was employed by
the defendant at the time of the injury. Holm, 609 F.Supp.3d at
1178; see also Omar v. Sea-Land Service, Inc., 813 F.2d 986, 989
(9th Cir. 1987).
Plaintiff has failed to state facts to establish an
employee-employer relationship at the time of the alleged injury
on August 21, 2021. The First Amended Complaint asserts that
“Plaintiff was in the employ of IMIA as a seaman.” (FAC at ¶ 44,
ECF No. 36). Plaintiff has sued three different entities that
include the initials “IMIA”: International Marine and Industrial
Applicators, LLC; IMIA, LLC; and IMIA Holdings, Inc.
For purposes of the Jones Act, there can only be one
employer. Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783,
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791 (1949); see also Belcher v. Sundad, Inc., 2008 WL 2937258, *2
(D. Ore. July 18, 2008). The First Amended Complaint does not
specify which of the three named IMIA entities was allegedly
Plaintiff’s employer at the time of the purported injury. Simply
alleging “IMIA” without identifying which particular entity was
Plaintiff’s employer fails to state a negligence claim pursuant
to the Jones Act.
In addition, there are no facts in the First Amended
Complaint to establish that any employer-employee relationship
existed. A conclusory allegation that Plaintiff was “in the
employ” of an entity is insufficient to demonstrate that
Plaintiff was an employee for purposes of the Jones Act. See
Waters v. Mitchell, 600 F.Supp.3d 1177, 1184-85 (W.D. Wash.
2022).
Allegations in a complaint may not simply recite the
elements of a cause of action, but the complaint must contain
sufficient allegations of underlying facts to give fair notice to
enable the opposing party to defend itself effectively. Starr v.
Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
For Jones Act cases, the degree of control exercised over
the crew members including factors such as payment, direction,
supervision, and source of the power to hire and fire generally
determines the employer-employee relationship. See Glynn v. Roy
Al Boat Management Corp., 57 F.3d 1495, 1499-1500 (9th Cir. 1995)
(abrogated in part by Atlantic Sounding Co., Inc. v. Townsend,
557 U.S. 404, 408 (2009)). Independent contractors, on the other
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hand, are ineligible to seek recovery under the Jones Act. Holm,
609 F.Supp.3d at 1179 (citing Moore v. Noble Drilling Co., 637
F.Supp. 97, 99 (E.D. Tex. 1986)).
Plaintiff has not stated sufficient facts to demonstrate
that she was an employee of any of the defendants for purposes of
the Jones Act.
II. Plaintiff Has Not Alleged Sufficient Facts To Establish She
Was A “Seaman” Pursuant To The Jones Act
In Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995), the
United States Supreme Court set forth a two-prong test to
determine whether a plaintiff is a “seaman” who is entitled to
coverage pursuant to the Jones Act.
First, the employee’s duties must “contribute to the
function of the vessel or to the accomplishment of its mission.”
Id.
Second, the employee “must have a connection to a vessel in
navigation (or to an identifiable group of such vessels) that is
substantial in terms of both its duration and its nature.” Id.
The United States Supreme Court explained that the purpose of the
second requirement is to “separate the sea-based maritime
employees who are entitled to Jones Act protection from those
land-based workers who only have a transitory or sporadic
connection to a vessel in navigation.” Id.
The Court ruled that a “maritime worker who spends only a
small fraction of his working time on board a vessel is
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fundamentally land based and therefore not a member of the
vessel’s crew, regardless of what his duties are.” Id. at 371.
Generally, a worker who spends “less than about 30 percent of his
time in the service of a vessel in navigation” does not qualify
as a seaman under the Jones Act. Id.
Ultimately, the test is “fundamentally status based” and the
United States Supreme Court has equated the question of who is a
“seaman” to the determination of who is a member of the vessel’s
crew. Scheuring v. Traylor Bros, 476 F.3d 781, 785 (9th Cir.
2007) (citing Chandris, 515 U.S. at 356, 361).
Courts have regularly ruled that the Jones Act does not
cover probable or expectant seamen but only seamen who are
actively members of the vessel’s crew in navigation. Desper v.
Starved Rock Ferry Co., 342 U.S. 187, 190-91 (1952) (explaining
that the Jones Act does not apply to shore-based personnel who
might be crew in the future). For example, workers hired to help
repair and perform maintenance on a vessel while it was laid up
for the winter were not seamen for purposes of the Jones Act.
Heise v. Fishing Co. of Alaska, 79 F.3d 903, 906-07 (9th Cir.
1996). The Ninth Circuit Court of Appeals ruled that a crane
operator working aboard a crane barge was not covered under the
Jones Act because his work was not “primarily sea-based.” Cabral
v. Healy Tibbits Builders, Inc., 128 F.3d 1289, 1293 (9th Cir.
1997).
Here, Plaintiff alleges that she was employed “to work
aboard the USS William P. Lawrence (DDG-110) (the ‘Vessel’) in a
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graving dock at Pearl Harbor Naval Shipyard to perform industrial
painting, blasting, cleaning, and other related work in a
containment.” (FAC at ¶ 10, ECF No. 36). There are no facts to
establish that Plaintiff’s connection to the subject vessel is
“substantial in terms of both its duration and its nature” for
purposes of stating a claim pursuant to the Jones Act. See
Chandris, 515 U.S. at 368.
The purpose of the two-prong test is to separate the sea-
based maritime employees who are entitled to Jones Act protection
from those land-based workers whose employment does not
“regularly expose them to the perils of the sea.” Id.
Plaintiff’s allegations that she performed industrial painting,
blasting, cleaning, and other work in a containment while the
vessel was in a graving dock fails to demonstrate that Plaintiff
was a seaman for purposes of the Jones Act.
Plaintiff has provided no allegations that she spent any
time on the vessel while in navigation. Chandris, 515 U.S. at
371. A land-based worker who spends 100% of her time on board a
vessel but did not include any seagoing activity is not a seaman
for purposes of the Jones Act. Gipson v. Kajima Eng’g & Const.,
Inc., 173 F.3d 860, *1 (9th Cir. 1999) (unpublished) (citing
Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 559-60 (1997)).
In order to state a claim pursuant to the Jones Act,
Plaintiff must assert sufficient facts to demonstrate the nature
and duration of her employment, including her total amount of
seagoing activity, in order to satisfy the “substantial
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connection” test set forth by the United States Supreme Court in
Chandris, 515 U.S. at 368.
Plaintiff’s claim in Count III for “Jones Act Negligence
against IMIA” is DISMISSED for failure to state a claim pursuant
to Fed. R. Civ. P. 12(b)(6).
Plaintiff is GRANTED LEAVE TO AMEND.
III. Plaintiff Has Failed To State A Maintenance And Cure Claim
The First Amended Complaint seeks to bring a claim against
“IMIA” as Plaintiff’s employer for “maintenance, cure, and
unearned wages” pursuant to the Jones Act. (FAC at p. 14, ECF
No. 36).
Just as with a Jones Act negligence claim, in order to
recover maintenance and cure from a defendant, a plaintiff must
establish that she was (1) employed by the defendant at the time
of the injury and (2) a seaman within the meaning of the Jones
Act. Larrison v. Ocean Beauty Seafoods, LLC, F.Supp.3d ,
2023 WL 197271, *3 (W.D. Wash. Jan. 17, 2023); see Vaughan v.
Atkinson, 369 U.S. 527, 532-33 (1962).
As explained above, Plaintiff has failed to state sufficient
facts to demonstrate that any of the defendants was her employer
at the time of her alleged injuries. The First Amended Complaint
also fails to allege sufficient facts to establish that Plaintiff
was a “seaman” within the meaning of the Jones Act. See Bauer v.
MRAG Americas, Inc., Civ. No. 08-00582 DAE-BMK, 2009 WL 10695613,
at *3 (D. Haw. Sept. 23, 2009) (explaining that a claim for
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maintenance and cure requires plaintiff be a seaman within the
meaning of the Jones Act).
Plaintiff’s claim in Count IV for “Maintenance, Cure, and
Unearned Wages against IMIA” is DISMISSED for failure to state a
claim pursuant to Fed. R. Civ. P. 12(b)(6).
Plaintiff is GRANTED LEAVE TO AMEND.
IV. Plaintiff Has Failed To State A Claim Against Defendant Doug
Eiss
The First Amended Complaint asserts that Count V is brought
against Defendant Doug Eiss for “Willful and Wanton Misconduct.”
Plaintiff alleges that Doug Eiss was employed by “IMIA in a
supervisory capacity responsible for jobsite safety for IMIA’s
work on the Vessel.” (FAC at ¶ 63, ECF No. 36).
Defendant Eiss argues that he is immune from liability
because Plaintiff was not a “seaman” within the meaning of the
Jones Act, but rather she was a Longshoreman who is currently
receiving workers’ compensation benefits pursuant to the
Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 933.
Defendants argues that Section (i) of the Longshore and
Harbor Workers’ Compensation Act precludes Plaintiff from suing
Defendant Eiss. See Calder v. Crall, 726 F.2d 598, 599 (9th Cir.
1984).
The First Amended Complaint has failed to set forth
sufficient allegations to plausibly state a claim against
Defendant Eiss. There are no facts to establish which entity
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employed Eiss. Plaintiff has not established a basis to sue
Defendant Eiss individually. The First Amended Complaint
contains merely legal conclusions, and there are insufficient
facts to assert a claim for negligence with respect to Defendant
Eiss regarding legal duty, breach, or causation.
Plaintiff’s claim in Count V against Defendant Eiss is
DISMISSED for failure to plausibly state a claim. Plaintiff is
GRANTED LEAVE TO AMEND. Plaintiff must allege sufficient facts
to demonstrate the legal and factual basis that Defendant Eiss
may be personally liable to her for purported “willful and wanton
misconduct.” In order to plausibly state a claim, Plaintiff must
set forth facts to establish she is entitled to recover damages
from Defendant Eiss and that 33 U.S.C. § 933(i) does not bar
recovery.
CONCLUSION
Defendants International Marine and Industrial Applicators,
LLC; IMIA, LLC; IMIA Holdings, Inc.; and, Doug Eiss’s Motion to
Dismiss (ECF No. 67) is GRANTED WITH LEAVE TO AMEND.
Plaintiff is given LEAVE TO AMEND and may file a Second
Amended Complaint on or before Thursday, September 7, 2023. The
Second Amended Complaint must conform to the rulings contained in
this Order. Plaintiff is cautioned that the Second Amended
Complaint must address the issues identified in the Order,
including providing specific facts as to how each individual
defendant is liable for each cause of action. Plaintiff must
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provide sufficient allegations to plausibly state a claim
pursuant to Iqbal/Twombly.
Plaintiff may not allege any new causes of action in the
Second Amended Complaint. Plaintiff may not add any additional
defendants in the Second Amended Complaint.
Failure to file a Second Amended Complaint or to comply with
the rulings in this Order on or before Thursday, September 7,
2023, will result in automatic dismissal with prejudice of all of
the claims dismissed in this Order against Defendants
International Marine and Industrial Applicators, LLC; IMIA, LLC;
IMIA Holdings, Inc.; and Doug Eiss.
IT IS SO ORDERED.
DATED: July 19, 2023, Honolulu, Hawaii.
Ashley Cooper v. Vigor Marine, LLC; Vigor Industrial, LLC;
Brandsafway Industries, LLC; Brandsafway Services, LLC;
Brandsafway Solutions, LLC; International Marine and Industrial
Applicators, LLC; IMIA, LLC; IMIA Holdings, Inc.; Doug Eiss; Doe
Individuals 1-10; Doe Corporations 1-10; Doe Partnerships 1-10;
Doe Entites 1-10; Civ. No. 22-00275HG-RT; ORDER GRANTING
DEFENDANTS INTERNATIONAL MARINE AND INDUSTRIAL APPLICATORS, LLC;
IMIA, LLC; IMIA HOLDINGS, INC.; AND, DOUG EISS’S MOTION TO
DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT FOR FAILURE TO STATE
A CLAIM (ECF No. 67) WITH LEAVE TO AMEND
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